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Court of Criminal Appeal 7 March 2001

R v Slater [2001] NSWCCA 65 revised - 23

[2001] NSWCCA 65

Also reported as (2001) 121 A Crim R 369
Homicide
APPEAL SEVERITY APPELLANT TO BE RE

Citation: R v Slater [2001] NSWCCA 65
Court: NSW Court of Criminal Appeal
Date: 7 March 2001
Judge(s): Spigelman CJ, Sperling J, Carruthers AJ

Background

The appellant was convicted of murder in 1990, committed when he was 18 years old. Together with a co-offender, he was involved in the abduction and killing of a 25-year-old woman, with the appellant identified as the instigator. Loveday J sentenced him to penal servitude for life at first instance.

In November 1999, the appellant applied under s 13A of the (then) Sentencing Act 1989 for re-determination of his life sentence. Sully J granted the application and re-sentenced him to 24 years' penal servitude, comprising an 18-year minimum term and a six-year additional term, commencing from the date he was first taken into custody in September 1989.

The appellant then sought leave to appeal against that re-determined sentence on grounds of severity. A central issue was whether Sully J had been correctly informed about the conditions under which the appellant had been, and would continue to be, held in custody.

  • Whether the re-determined sentence of 24 years (minimum term 18 years) was manifestly excessive for a worst-category murder committed by a youthful offender.
  • Whether the sentencing judge was misinformed about the length of time the appellant had already spent, and would continue to spend, in protective custody.
  • Whether the circumstances of the offence required a sentence for the natural life of the offender, or whether a finite term was appropriate.

Decision

The Court of Criminal Appeal accepted that this was a worst-category murder case. The offending involved a deliberate and brutal killing of a stranger, with the appellant acting as the primary instigator. The gravity of the offending was not in dispute.

However, the Court found that the sentencing judge had been misinformed about the period the appellant had already served in protective custody and the extent to which he would be required to serve virtually his entire sentence under those conditions. Protective custody is a materially harsher custodial environment, and accurate information about its duration is relevant to the sentencing exercise.

On the question of whether a natural life sentence was warranted, the Court concluded it was not. Despite the extreme seriousness of the offence, a finite term appropriately reflected the appellant's youth at the time and the other relevant circumstances.

The Court allowed the appeal and re-sentenced the appellant on the correct factual basis, namely that he would serve virtually the whole of his sentence in protective custody.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • The appellant re-sentenced on the basis that he will serve virtually the whole of his sentence in protective custody (specific re-determined sentence as indicated by Carruthers AJ).

Key Takeaways

  • A murder conviction involving extreme violence and premeditation by a young offender can constitute a worst-category case without necessarily requiring a sentence for the natural life of the offender.
  • Accurate information about the conditions of custody, including the duration of time spent in protective custody, forms part of the factual foundation for sentencing. A material error on this point can vitiate a sentence and warrant intervention on appeal.
  • The Court of Criminal Appeal confirmed that protective custody conditions are a relevant sentencing consideration, given the significantly harsher nature of that custodial environment compared to general population imprisonment.
  • Where a sentence has been re-determined under s 13A of the Sentencing Act 1989, the same obligation to sentence on correct facts applies as in any other sentencing proceeding.
  • Spigelman CJ cautioned that schedules of comparable sentences attached to judgments should be used carefully: they are not always comprehensive, and the full range of relevant authority may not be captured.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 19A(1)
- Criminal Procedure Act 1986 (NSW)
- Sentencing Act 1989 (NSW), s 13A (since repealed)

Cases Cited:
- R v Barry [2000] NSWCCA 138
- R v Boreland (NSWCCA, 2 August 1994, unreported)
- R v GDP (1991) 53 A Crim R 112
- R v Gieselman (NSWCCA, 13 July 1998, unreported)
- R v Hearne [2001] NSWCCA 37
- R v Herring (NSWCCA, 24 November 1998, unreported)
- R v Lees [1999] NSWCCA 301
- R v Lett (NSWCCA, 23 June 1998, unreported)
- R v Maiden (1999) NSWSC 311
- R v Previtera (1997) A Crim R 76
- R v Short [2000] NSWCCA 462
- R v Stephens [1999] NSWCCA 80
- R v Tran [1999] NSWCCA 109
- R v Twala (NSWCCA, 4 November 1994, unreported)
- R v Websdale (2000) NSWSC 636
- R v White (NSWCCA, 23 June 1998, unreported)